Art. 188. After proceeding with the interrogation, the judge will ask the parties if there is any fact left to be clarified, formulating the corresponding questions if he deems it pertinent and relevant. (Wording provided by Law No. 10,792, of 1.12.2003).
Order of questions, rejection of impertinent questions and intermediation of the judge
Order: There are those who maintain, on the grounds that interrogation is a means of defense, that the first person to ask questions is the defense. With no reason. It is precisely because it is a means of defense that the last one to ask the questions should be this one, including to contradict and clarify any narrative that has not been clear, when answering the prosecutor’s questions. Therefore, first the prosecution will be given the floor, and then the defense.
Dismissal of the proposed question: The judge has the option of rejecting the request for clarification by the parties, considering it to be irrelevant, or because it has already been clarified. The party has the right (if the hearing is not recorded) that the rejected question be included in the minutes of the hearing, and may, if applicable, argue nullity due to restriction of rights.
Questions asked with intermediation of the judge: The questions are asked to the questioning with the intermediation of the judge, except in the Plenary of the Jury, in which the Public Ministry, the assistant, the plaintiff and the defender, in that order, will be able to formulate, directly, questions to the accused ( article 474, paragraph 1 ). Questions to witnesses are asked directly by the parties ( article 212 ).
The presence of the defenders, the defendant, the co-defendant and accused whistleblower
The defender’s presence: Before the amendment of Law n. 10,792/2003 , the presence of the lawyer was optional, and he was not given the right to intervene in the interrogation. With the current obligation, the absence of a defender generates nullity.
Participation of the co-defendant’s lawyer: It is discussed in the doctrine whether the co-defendant’s lawyer can propose questions to be clarified. We understand that yes, and that, including, should always be subpoenaed for interrogation of the defendant, especially if the defenses are conflicting. If the defendant does not want to, he will not respond to the inquiries. It’s your right. But the right of the defendant’s lawyer to ask, nothing justifies withdrawing.
Whistle-blowing defendant and co-defendant’s defender: It is common ground that, in the case of a snitching defendant, the co-defendant’s defender can propose questions to be answered by the defendant, since the effects of the whistle-blowing may influence the sentence. Failure to grant this opportunity results in nullity.